Can My Employer Fire Me While I Am Off Work Recovering From an Alabama Workers Compensation Injury?

Can My Employer Fire Me While I Am Off Work Recovering From an Alabama Workers Compensation Injury?

One of the more troubling questions we hear from injured Alabama workers is “My workers’ compensation doctor has me completely off work. Can my employer fire me while I am still recovering?”

Unfortunately, there is not a simple yes-or-no answer.

Being taken completely off work by an authorized treating physician does not necessarily guarantee that your employer must hold your job open indefinitely.  At the same time, an Alabama employer cannot lawfully fire an employee solely because the employee pursued workers’ compensation benefits.  Those are two very different legal principles, and understanding the difference can be extremely important when an injured worker is at home recovering and receives a termination letter.

Alabama Is Generally an Employment-at-Will State

As a general rule, Alabama follows the employment-at-will doctrine (should be called a right-to-fire doctrine). That means an employer ordinarily has broad authority to terminate an employee.  There is, however, an important statutory exception for injured workers.

Ala. Code § 25-5-11.1 provides that an employee may not be terminated “solely because” the employee has instituted or maintained an action to recover workers’ compensation benefits.  That protection exists because the Alabama Legislature recognized the obvious problem that would arise if employers could simply fire workers for exercising their rights under the Workers’ Compensation Act.

As the Alabama Supreme Court later stated in White v. Midtown Restaurant Corp., retaliation against employees for pursuing workers’ compensation rights is “deplorable,” but § 25-5-11.1 does not provide absolute job security to every employee who has suffered a workplace injury.

Recommended Reading: Can My Employer Fire Me After I File a Workers’ Compensation Claim in Alabama?

What If My Doctor Says I Cannot Work at All?

This is where the issue becomes more difficult.  Suppose an employee suffers a serious shoulder or back injury. The authorized workers’ compensation doctor performs surgery and writes “No work until further notice.”

The employee is receiving temporary total disability benefits and following the doctor’s instructions.  Several weeks or months later, the employer terminates the employee.

The fact that the employee was medically unable to work does not, standing alone, establish retaliatory discharge-but neither does the employee’s inability to work automatically defeat a retaliatory discharge claim.

That distinction comes largely from the Alabama Supreme Court’s decision in Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala. 2000).

The Alabama Supreme Court’s Decision in Bleier

For a period of time, Alabama cases had developed a rule requiring an employee bringing a retaliatory discharge claim to prove that the employee was “willing and able” to return to work, but the Alabama Supreme Court rejected that requirement in Bleier.

The Court held that being willing and able to return to work is not an element of the employee’s prima facie retaliatory discharge case.

That is important for an injured worker whose doctor still has the worker completely off work.  An employer cannot necessarily defeat the retaliatory discharge claim simply by saying “You could not work when we fired you.”

However, Bleier also recognized the other side of the issue.  The retaliatory discharge statute does not generally require an employer to create a new position or provide a special accommodation merely because an injured employee cannot perform the employee’s job. The employee’s physical inability to work can therefore become relevant to the employer’s defense.

And it can be extremely important when determining damages.

An employee who was medically unable to work ordinarily cannot recover lost wages for a period during which the employee could not have earned those wages anyway, but Bleier recognized that this does not necessarily eliminate other damages caused by an unlawful retaliatory discharge.

Recommended Reading: Do I Have to Be Able to Return to Work to Bring an Alabama Retaliatory Discharge Claim?

Being Fired While You Are Off Work Is Not the Same as Being Fired Because You Filed a Workers’ Compensation Claim

This may be the most important point in this article.

There is a major legal difference between: “I was fired while I was off work because of my injury” and “I was fired because I pursued workers’ compensation benefits.”

The first establishes timing.

The second addresses causation.

Alabama’s retaliatory discharge statute requires the employee to prove the necessary connection between the workers’ compensation claim and the termination.

In Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002), the Alabama Supreme Court identified several types of circumstantial evidence that may help establish that connection, including:

• knowledge of the workers’ compensation claim by the people making the termination decision;
• expressions of a negative attitude toward the employee’s injured condition;
• failure to follow established company policy;
• different treatment of similarly situated employees;
• sudden changes in performance evaluations following the workers’ compensation claim; and
• evidence that the employer’s stated reason for termination was false.

Timing can also be important, particularly when it exists alongside other evidence.

So, if an employee is terminated while still recovering from a workplace injury, the inquiry should not necessarily end with “Was the employee able to work?”

We may also need to ask Why did the employer decide to terminate this employee at this particular time?

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun

What Reason Did the Employer Give?

The employer’s stated reason for termination can become critically important.  For example, an employer may say:

• “Your medical leave expired.”
• “You exceeded the maximum leave allowed under company policy.”
• “You violated our attendance policy.”
• “You failed to call in.”
• “We could no longer hold your position.”
• “You exhausted FMLA.”
• “You were unable to perform your job.”

Any one of those explanations may potentially constitute a legitimate, nonretaliatory reason for termination depending upon the facts, but the existence of a stated reason does not necessarily end the inquiry.

The question may become whether that was the real reason.

Did the Employer Actually Follow Its Leave Policy?

Suppose an employer says that company policy allows employees to remain on medical leave for six months, after which employment is automatically terminated.

We would want to know more.  Was that actually the policy in effect?  Was the employee informed of it?  Was it consistently enforced?  Were employees with non-work-related illnesses terminated after six months?  Were exceptions made?  Did management have discretion to extend leave?  Did the employer follow the policy in this case?

Or did the company suddenly invoke a policy against an injured worker shortly after the worker filed a workers’ compensation claim?

These questions can matter because Aldridge specifically recognizes an employer’s failure to follow established company policy and discriminatory treatment of similarly situated employees as potentially relevant circumstantial evidence.

Recommended Reading: Can My Employer Fire Me for Violating a Company Policy After I File a Workers’ Compensation Claim?

What About Attendance Policies? 

Attendance cases can be particularly difficult.  An employer may ordinarily enforce a legitimate attendance policy, but an injured worker who has been expressly taken off work by the authorized workers’ compensation doctor presents a very different factual situation from an employee who simply stops showing up for work without explanation.

Recommended Reading: Can My Employer Fire Me for Attendance Problems After a Workers’ Compensation Injury in Alabama?

What If the Employer Says I Cannot Perform My Old Job?

That can also be a legitimate issue.

In Dunn v. Comcast Corp., 781 So. 2d 940 (Ala. 2000), an injured service technician returned with a medical restriction against climbing ladders. Comcast ultimately terminated him after requiring him to return to service-technician duties involving ladder climbing.  The Alabama Supreme Court recognized that an employer may have a legitimate defense based upon an employee’s inability to perform the job-but the Court nevertheless reversed summary judgment for the employer because there was evidence from which a jury could question whether that was the employer’s actual reason for the termination. Evidence indicated that the general manager had anticipated terminating Dunn before Dunn returned and before Comcast knew whether he could climb ladders.

That illustrates an important recurring principle in retaliatory discharge cases: A reason that could legitimately support termination is not necessarily the reason that actually caused the termination.

That is where the concept of pretext becomes important.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case?

What About FMLA?

For employees of larger employers, another federal law may provide important protection while the injured worker is recovering.  The Family and Medical Leave Act (FMLA) generally provides eligible employees of covered employers with up to 12 workweeks of job-protected leave for qualifying medical and family reasons.

A serious workplace injury may qualify.

That means an eligible employee who is medically unable to work because of a workers’ compensation injury may simultaneously be protected by both the workers’ compensation laws and the FMLA.  There is, however, an important issue that surprises many injured workers: Workers’ compensation leave and FMLA leave can run at the same time.

We regularly encounter injured workers who ask why their employer is placing them on FMLA when they never requested it and are already off work because of an accepted workers’ compensation injury.

That deserves its own discussion, which we will do in our next blog.

Recommended Reading: Can My Employer Force Me to Use FMLA While I Am Off Work for an Alabama Workers’ Compensation Injury?

What Happens When the 12 Weeks of FMLA Runs Out?

This is another area where injured workers need to be careful.

FMLA does not ordinarily require an employer to hold an employee’s job indefinitely. Its job-protection provisions generally provide up to 12 workweeks of qualifying leave during the applicable 12-month period, but the expiration of FMLA leave does not mean “The employer can now fire me because I filed a workers’ compensation claim.”

Those are separate legal issues.

Other laws may also matter depending upon the facts, including the Americans with Disabilities Act, but for purposes of an Alabama retaliatory discharge claim, the fundamental question remains the same: Why was the employee terminated?

If the employer consistently terminates every employee after exhaustion of a neutrally applied leave policy, that may be significant evidence supporting the employer’s explanation.

If the supposed leave rule was selectively applied, changed, ignored for other employees, or appears only after the workers’ compensation injury, that may point in a very different direction.

Save the Documents

If you are terminated while still off work because of a job injury, save the documents surrounding the termination.

That may include:

• the termination letter;
• FMLA notices;
• leave-of-absence paperwork;
• the employee handbook;
• attendance policies;
• doctor’s off-work slips;
• medical restrictions;
• emails and texts with supervisors or Human Resources;
• letters concerning workers’ compensation benefits;
• light-duty offers;
• call-in records; and
• anything explaining why the employer says your employment ended.

Do not alter the documents, and do not improperly access company systems or take confidential documents you are not entitled to possess.

The reason these records matter is simple.

Months later, an employer and employee may remember conversations differently, but contemporaneous documents can sometimes tell us what was actually happening when the termination decision was made.

Recommended Reading: What Evidence Should I Save If I Think I Was Fired Because of My Alabama Workers’ Compensation Claim?

An Alabama worker who is completely off work under a doctor’s orders because of a workers’ compensation injury does not necessarily have an absolute right to have the employer hold the job open indefinitely.  But being unable to work does not give an employer permission to terminate an employee because the employee pursued workers’ compensation benefits.

If you suffered an Alabama job injury and were terminated while still off work or recovering, don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

Powell and Denny: We Work When You Can’t